Meet the senator blocking Big Content’s Web censorship plan

Senator Ron Wyden is on the warpath against Web censorship. "The content …

Start talking about the Web censorship legislation currently being drafted in both chambers of Congress, and Senator Ron Wyden (D-OR) becomes an instant quote machine. This isn't just another of the many political issues Wyden has to juggle; the man cares about the Internet. And in his passion to defend it, he's not afraid to ruin his chances of becoming the next ex-senator to head the Motion Picture Association of America.

"You get a lot of folks expressing increasing concern that essentially one part of the American economy, the content industry, is trying to use government as a club to beat up on one of the most promising parts but the economy of the future—the Internet," Wyden told me last week when we talked about the issue. "These major content lobbyists shouldn't be provided the authority to cluster bomb on the 'Net."

The cluster bomb in question here is COICA, the Combating Online Infringement and Counterfeits Act, first introduced in the Senate late last year. It passed unanimously out of committee, though it did not get a full vote before the end of the Congressional term. This year, both chambers are drafting tweaked versions of COICA, due to be rolled out separately in the next few weeks, and the House recently held two hearings on the issue.

COICA allows the government to block sites at the domain name (DNS) level, and it would require online ad networks and credit card companies to stop working with blocked sites. The goal is to target foreign piracy and counterfeiting sites that can't be easily reached through US courts. The blocks would require judicial sign-off, but most hearings would feature only the government's point of view, and rightsholders would largely supply the target list to government investigators.

In Wyden's view, the whole idea is little more than "creeping corporate control of the Internet."

Wyden has credibility on Internet issues. When the Communications Decency Act passed in the mid-1990s, Wyden managed to write and insert Section 230 into the bill, which freed companies and bloggers alike from liability for material written or submitted by others. It was a landmark provision, one that keeps ISPs, sites like Ars Technica, and companies like Google safe from lawsuits over comments and videos produced by users. (Much of the rest of the law was thrown out as an unconstitutional restriction on speech.)

Wyden recently reflected on that moment in a speech about Section 230. "I don’t want to embarrass any of my colleagues," he said, "but in the mid-'90s much of the debate was defined by folks who were afraid of the new technology—they wanted to protect children from the scary Internet—Chris and I hit on an idea that we felt would enable these new networks to protect their users without making them magnets for lawsuits… It was our intention to protect the network effect from the smothering hand of government and litigation."

In the debate over COICA, Wyden sees a similar dynamic at play, and he intends to take a leading role in the debate. "If the new version of COICA is like last year's version of COICA," he told me, "I will do everything in my power to block it."

Here's our full conversation.

Due process

Ars: Let's start with the ICE (Immigration and Customs Enforcement) domain name seizures. I recently spoke to Rep. Zoe Lofgren, who is strongly opposed to the seizures. They lack due process, in her view, because the seizure hearings aren't adversarial. You said last year that "the law is best applied when the government's assertions can be challenged before its actions are approved.” Do the recent domain name seizures violate that principle?

Wyden: I am very troubled for the domain name seizures, for the reasons that Congresswoman Lofgren has mentioned. Also, as you know, I have written to the agency trying to get some specific answers to questions; they haven't responded. This very much relates to the debate that's about to be held on Capitol Hill with the prospect of COICA legislation or "COICA Plus," as some in the House seem to be talking about.

The question is, why should the Congress give increased authority to law enforcement to seize domain names when we are not even clear how the authority that they have under current law is being used?

I think it's a very troubling practice that the government is engaged in now, and if someone is talking about going even further in a way that I think could do damage to the Internet, I'm pretty skeptical.

Ars: What are the key things you want to hear from ICE about their current practice before you would consider extending the government's authority over Internet domains?

Wyden: It is unclear how they make their judgments today about due process, and yet Congress is being asked to go out and expand the law on the books. There are significant questions today with respect to the distribution of infringing content, questions about links—these are areas that have got to be answered first.

Ars: I've talked to several people who are in favor of the domain name seizures and COICA. They point out repeatedly that the US already has seizure law for a wide variety of things, including narcotics and counterfeit products—and they say this is exactly the same thing.

Wyden: I think it's important to make a distinction between counterfeit goods and copyright infringement. This is right at the heart of the debate. With respect to counterfeits, the bad guys are warehousing, advertising, they're directly selling illicit merchandise, often to unsuspecting consumers. With respect to copyrights, what constitutes willful distribution or even infringement is still unsettled law.

In addition, with respect to the illegal production or distribution of tangible goods, the government has made it clear what's legal and what's not. So this is an area where you've got a pretty bright line; when you're talking about counterfeits, you've got efforts that are reasonably targeted, people understand what the ground rules are, there's a sense that you understand what law enforcement is doing with respect to key issues like due process. That is not the case today for copyright infringement.

That's right at the heart of this debate. I mean, when you're seizing tangible goods, you're not undermining the pillars of the Internet as well.

Ars: You specifically mentioned “linking sites" that host no infringing content themselves. We've seen several of these being seized by ICE. It sounds like you want more judicial clarity around issues like that before you think "seizure" is an appropriate response.

Wyden: Most reasonable Internet experts are telling us that linking itself cannot be illegal—but we've still got ICE out there saying, "Let's prosecute folks for linking." That's another issue that needs to be resolved.

I'd like to step back and give a broad overview of the issue here. Since we don't have a new COICA bill, we're speaking in the context of COICA as it was written last time [in late 2010].

If you start with the proposition that you should protect intellectual property at any and all costs, including compromising individual freedom, then you're for last year's COICA. If you believe as I do that the Internet is playing an increasingly important role in our economy, then you are skeptical of that kind of thinking and you want to make sure that you're not advancing proposals that are going to make the Internet weaker.

The reason I got into this goes back to the first hearing that I held on this in the Senate, where I'm chairman of the Senate Subcommittee on Competitiveness and International Trade. I pointed out that I think the Internet is the shipping lane of the 21st century. So if somebody comes along and is advancing proposals that I think are going to undermine our prospects there, I'm going to blow the whistle and do everything I can to try to change them.

Thanks for the great interview. I think Senator Wyden is one of the intellectual giants of today's Senate, and it's good to hear him articulate why he feels the way he does about COICA. I think opposition to COICA is right up the Tea Party's alley, so I'm hoping he can peel off some GOP support. At the very least, I expect Rand Paul of Kentucky would support him in this opposition, and Franken should be on board from the left because he won't get his tweaks. The left and right might be able to defeat their corporate sponsored colleagues on this. Not holding my breath, but hoping.

i hope he succeeds. they seem to be doing just fine imo in shutting down offending websites, they already have the tools they need to do what they have to do. big content wants to write law that suits them, and all of congress should object to that on principle, instead they line their pockets with lobbying dollars, its disgusting.

i mean if they can already seize a domain without any oversight, without due process how much more power could they possibly need, and to put it in the hands of big content is simply unbelievable. if they wrote the damn law, im sure they made plans on abusing/exploiting it already as well.

Nate, I love the way you always describe COICA as "Web censorship." It's so dignified and professional of you.

What is it if it is not censorship? The bill is to shutdown/block access to websites by the government. It meets the very definition of censorship.

"Censorship is the suppression of speech or other communication which may be considered objectionable, harmful, sensitive, or inconvenient to the general body of people as determined by a government, media outlet, or other controlling body."

Don't they ever learn? The websites will just register their domains in other countries. They will just do their business with non-US banks who are willing to work with them. Then what? US will just lose revenue from content sales due to piracy. And US will lose revenue from piracy too.

I always wonder why I keep hearing news about Ministers in countries like Japan, Korea, Taiwan etc. forced to resign or get investigated because they were receiving money from companies and individuals, but not in US. Now I realize why... because it is legal in the US and it is called lobbying.

Nate, I love the way you always describe COICA as "Web censorship." It's so dignified and professional of you.

What is it if it is not censorship? The bill is to shutdown/block access to websites by the government. It meets the very definition of censorship.

"Censorship is the suppression of speech or other communication which may be considered objectionable, harmful, sensitive, or inconvenient to the general body of people as determined by a government, media outlet, or other controlling body."

Most rational people would describe COICA as an "anti-piracy bill," as the unlawful sale of unlicensed material is not speech as we commonly understand it.

There is one area where Wyden deserves some props, even if he does overstate the difficulty of distinguishing piracy from speech: Section 230 of the Communications Decency Act has been very important to the development of legitimate Internet commerce. There is no good reason, however, to believe that there's any conflict between Section 230 and the enforcement of intellectual property law.

Most rational people would describe COICA as an "anti-piracy bill," as the unlawful sale of unlicensed material is not speech as we commonly understand it.

There is one area where Wyden deserves some props, even if he does overstate the difficulty of distinguishing piracy from speech: Section 230 of the Communications Decency Act has been very important to the development of legitimate Internet commerce. There is no good reason, however, to believe that there's any conflict between Section 230 and the enforcement of intellectual property law.

Of course, distinguishing piracy from speech is as easy as distinguishing 84,000 legitimate websites from child pornography. Oh, wait.

History has shown that the government is absolutely terrible and filtering out the bad from the good (especially when its a crusade led by overzealous Senators). Even worse is getting the corporations and industries to do the filtering, because they simply don't care.

COICA is an "anti-piracy bill" in name only, just like ACTA had nothing to do with counterfeiting.

Most rational people would describe COICA as an "anti-piracy bill," as the unlawful sale of unlicensed material is not speech as we commonly understand it.

There is one area where Wyden deserves some props, even if he does overstate the difficulty of distinguishing piracy from speech: Section 230 of the Communications Decency Act has been very important to the development of legitimate Internet commerce. There is no good reason, however, to believe that there's any conflict between Section 230 and the enforcement of intellectual property law.

It is the first bill in US history to implement government mandated website blocking at an ISP level. It does NOT require a charge to be filed or trial by jury. It is done in the name of a crime that, frankly, ranks right up there with jaywalking. Of course, looking at the way industry has written our laws you would never know. I could literally chop a mans legs off of his body using my car, and the amount he could sue me for would be less than if I had downloaded one shitty album off of the Internet. Now we want to up the ante and not only have bat shit crazy punishments for downloading an album off of the tubes, but we also want to fucking censor the internet for the first fucking time in US history over our bat shit crazy copyright laws that 'protect' content for over a hundred years?

Are you completely insane?

We, as a society, can somehow tolerate the KKK running a website, but holy shit, if someone shares a band's album we need to call in storm troopers, implement censorship of our communications, and sue people into oblivion? Get a fucking grip on reality. We shouldn't be censoring the internet, which is the only sane definition of ISP level government mandated blocking, and if we were to decide as a society to piss on the first amendment, we should do it for something worthwhile and not to keep 12 year old kids from downloading music.

Nate, I love the way you always describe COICA as "Web censorship." It's so dignified and professional of you.

What is it if it is not censorship? The bill is to shutdown/block access to websites by the government. It meets the very definition of censorship.

"Censorship is the suppression of speech or other communication which may be considered objectionable, harmful, sensitive, or inconvenient to the general body of people as determined by a government, media outlet, or other controlling body."

Most rational people would describe COICA as an "anti-piracy bill," as the unlawful sale of unlicensed material is not speech as we commonly understand it.

Unlawful sale of unlicensed material is, as a tautology, already illegal. What's wrong with the existing mechanisms of enforcement?

Similarly, why should we even consider simply taking the copyright-holder's word for it that something is infringing, when copyright law explicitly allows a fairly large grey area where unlicensed use (and even commercial use) of works is perfectly legal? Surely a corporation who has a commercial interest in a work has an incentive to claim infringement, and let the alleged infringer pay to defend themselves (should they be able to afford it), rather than being careful (or even simply honest) and only claiming infringement when it's clear that the site in question is infringing?

Giving people with inherent conflicts of interest preferred access to law enforcement is exceedingly problematic from a due process point of view, wouldn't you agree?

Quote:

There is no good reason, however, to believe that there's any conflict between Section 230 and the enforcement of intellectual property law.

Not yet, perhaps. But people who represent large copyright-holding corporations have been vocal about wanting ISPs to be required to inspect traffic for potential infringement, and enforce laws against alleged (not proven, not guilty, only alleged) infringers. Requiring ISPs to enforce claims or else face liability themselves seems to conflict with section 230, wouldn't you agree?

To add to the Narcotics argument - I don't ever recall someone going into a copied movie fueled madness and rampaging down the street in a superhuman rage. (Though with the quality of the regurgitations Hollywood churns out today, it may only be a matter of time...)

....Or getting so high off of a pirated copy of Crysis that they wander into a convenience store and start chowing Doritos right off of the rack.

There's a reason that you don't blanket punishments across multiple crimes; Why murder doesn't bring the same punishment as lifting a snickers bar at a supermarket register(Or why even murder has various degrees to begin with).

Note: With rare exception, the viewing of a movie, pirated or otherwise, is not known to cause severe birth defects in the state of California.

Most rational people would describe COICA as an "anti-piracy bill," as the unlawful sale of unlicensed material is not speech as we commonly understand it.

There is one area where Wyden deserves some props, even if he does overstate the difficulty of distinguishing piracy from speech: Section 230 of the Communications Decency Act has been very important to the development of legitimate Internet commerce. There is no good reason, however, to believe that there's any conflict between Section 230 and the enforcement of intellectual property law.

It is the first bill in US history to implement government mandated website blocking at an ISP level. It does NOT require a charge to be filed or trial by jury. It is done in the name of a crime that, frankly, ranks right up there with jaywalking. Of course, looking at the way industry has written our laws you would never know. I could literally chop a mans legs off of his body using my car, and the amount he could sue me for would be less than if I had downloaded one shitty album off of the Internet. Now we want to up the ante and not only have bat shit crazy punishments for downloading an album off of the tubes, but we also want to fucking censor the internet for the first fucking time in US history over our bat shit crazy copyright laws that 'protect' content for over a hundred years?

Are you completely insane?

We, as a society, can somehow tolerate the KKK running a website, but holy shit, if someone shares a band's album we need to call in storm troopers, implement censorship of our communications, and sue people into oblivion? Get a fucking grip on reality. We shouldn't be censoring the internet, which is the only sane definition of ISP level government mandated blocking, and if we were to decide as a society to piss on the first amendment, we should do it for something worthwhile and not to keep 12 year old kids from downloading music.

Team up Ron Wyden and Al Franken, and you have the two folks in Washington I know of who know how to spell "web" without a spell-checker (maybe even touch-type it) and without COPYing it from somewhere else.

If linking to pirate websites becomes illegal, where will that put Google and Bing? And are Google and Bing themselves pirates? Yet to be decided.

If you can't shut down sites that traffic in piracy, might as well block them...

1. You can't shut them down because they are not in this country.2. They may be operating 100% within the law of their own country.3. You can *NOT* block them either - you can only try in vain.

I don't want my tax money going towards a super high tech game of whack-a-mole - especially when I already know it can't be won. If the DNS is blocked you can use another DNS; if that's blocked, you can use the IP address; if that's blocked you can use onion routing; if that's blocked, you can use encryption to hide your traffic. If you start blocking all encrypted traffic, you have censored the Internet and taken away the people's right to encryption. Congrats! You are now in Communist China.

Sure! Let's trim the budget down to the bare bones but be sure to set some aside to fund the Copyright Police. Absolute BS! We've got bigger problems *AND* we're broke.

Richard Bennett wrote:

Most rational people would describe COICA as an "anti-piracy bill,"

Unless those rational people have actually *read* it, I couldn't care less how they would describe it.

Richard Bennett wrote:

as the unlawful sale of unlicensed material is not speech as we commonly understand it.

Big Content is foaming at the mouth to get this passed and you know full well the top targets on their hit-list are *NOT* selling any "material" - much less "unlicensed" - and even less "unlawful." No matter what your personal views are on this issue are, you need to put them aside, turn on your brain, and try to understand the facts. The technological facts of the situation are that the sites aren't hosting any material; if they aren't hosting it, they cannot possibly be distributing it; if they aren't distributing, they cannot possibly be selling.

They *have* however, found a revenue model based on ads and donations - is this illegal? That question, among others, remains unanswered. As the good senator says, we need to get some answers before we can even begin to take actions.

"Shoot first and ask questions later" is not how the governments of the Free World should behave.

I thought that everytime this surfaced it was killed by someone over at the FBI and NSA because currently they can take down a site if they want to, implement legislation like this and distributed dns could become extremely popular especially the more overly zealous it's applied to stuff that folks think is legit and then they lose all control. So just wait for the FBI director to call the relevant members of congress and then all will be well or am I completely way off on this one?

Being an Oregon native, at least I can take some pride in some of the politicians Oregon has produced over the years. (Tom McCall, a Republican who was a better democrat than most democrats), and now Ron Wyden.

And it's no small irony to me that I now live in the district of one of the worst examples of partasinship, demagoguery and a serious lack of intellectual wherewithal – Darrell Issa.

Most rational people would describe COICA as an "anti-piracy bill," as the unlawful sale of unlicensed material is not speech as we commonly understand it.

Only if you've redefined "rational", not to mention "sale" and "unlicensed material". Try actually reading the issues?

moonshine - Lots of people /are/. Indeed, that's a major, major issue from my standpoint. And it doesn't only hurt the people pushing for these rules, but the people pushing for a more equitable solution...the target discrimination on TPB and so on is basically terrible.

Eh what do I know, virtually all the work I've done which makes me money is out there under OGL and CC licences, while the propitiatory licensed stuff repeatedly fails to cross (low) royalty margins. This is not a coincidence of course, but getting big content to *see* this...

Nate, I love the way you always describe COICA as "Web censorship." It's so dignified and professional of you.

I think you mean "accurate".

Richard Bennett wrote:

Most rational people would describe COICA as an "anti-piracy bill," as the unlawful sale of unlicensed material is not speech as we commonly understand it.

"Sale"? Does anybody actually "sell" unlicensed material? WTF? Are you actually reading these articles, or just {control}{C}{V} from foxnews.com?

asmoore82 wrote:

I don't want my tax money going towards a super high tech game of whack-a-mole - especially when I already know it can't be won. If the DNS is blocked you can use another DNS; if that's blocked, you can use the IP address; if that's blocked you can use onion routing; if that's blocked, you can use encryption to hide your traffic. If you start blocking all encrypted traffic, you have censored the Internet and taken away the people's right to encryption. Congrats! You are now in Communist China.

In Communist China, the Net Inters YOU!Sorry, couldna help it.

COICA is big content using the government they bought and paid as a longer lance to tilt at windmills beyond our borders.

COICA is primarily focused on shutting down web stores that sell movie downloads they're not licensed to sell to people who pay by credit card. It is not about busting the little people for sharing songs with each other.

Read the bill.

Some people have the mistaken idea that sites that don't actually *host* unlawful downloads can't possibly be infringing the law, yet Pirate Bay, which does exactly this sort of thing (with a carefully hand built directory of recent TV shows) has in fact been declared unlawful under Swedish law. Sweden is, of course, as protective of genuine free speech as anyone, but they don't tolerate PB.

You have to be pretty naive to think that Pirate Bay doesn't exist for the primary purpose of abetting piracy, or that they collect money from the sale of ads for any other reason than their success at that enterprise.

COICA is primarily focused on shutting down web stores that sell movie downloads they're not licensed to sell to people who pay by credit card. It is not about busting the little people for sharing songs with each other.

Read the bill.

And ICE, who will be enforcing COICA, has taken down non-infringing websites at the behest of the content industry. Ars has written about this several times. COICA will give this process added teeth.

Quote:

Some people have the mistaken idea that sites that don't actually *host* unlawful downloads can't possibly be infringing the law, ... Sweden is, of course, as protective of genuine free speech as anyone, but they don't tolerate PB.

You and the Swedish authorities may think that such an attitude is a 'mistake' but many don't, including many of the Swedish public who have added two Pirate Party members to the European Parliament.

COICA is primarily focused on shutting down web stores that sell movie downloads they're not licensed to sell to people who pay by credit card. It is not about busting the little people for sharing songs with each other.

Actually, "The goal is to target foreign piracy and counterfeiting sites that can't be easily reached through US courts."But of course you immediately rant about TPB, which doesn't do at all what you say COICA is "primarily focused" on, and I don't think I've ever heard of any website that does.

Richard Bennett wrote:

Some people have the mistaken idea that sites that don't actually *host* unlawful downloads can't possibly be infringing the law, yet Pirate Bay, which does exactly this sort of thing (with a carefully hand built directory of recent TV shows) has in fact been declared unlawful under Swedish law. Sweden is, of course, as protective of genuine free speech as anyone, but they don't tolerate PB. You have to be pretty naive to think that Pirate Bay doesn't exist for the primary purpose of abetting piracy, or that they collect money from the sale of ads for any other reason than their success at that enterprise.

Most rational people would describe COICA as an "anti-piracy bill," as the unlawful sale of unlicensed material is not speech as we commonly understand it.

There is one area where Wyden deserves some props, even if he does overstate the difficulty of distinguishing piracy from speech: Section 230 of the Communications Decency Act has been very important to the development of legitimate Internet commerce. There is no good reason, however, to believe that there's any conflict between Section 230 and the enforcement of intellectual property law.

You're defending COICA, then.

Because not everyone has had to read COICA and because it can be a little difficult to understand, I'm going to use an analogy that doesn't involve cars (sorry) to explain why COICA is a problem.

If you were to enact a law that allows federal law enforcement to raid your property to search for firearms without probable cause, you would be doing exactly the same thing.

Again, this gets in to Constitutional protections. When you start to mess with Constitutional protections, people start to get very, very mad. Only the fact that this has been kept low-key to this point has prevented said backlash.

We don't need new laws for anything except defining what is and what isn't copyright infringement when it doesn't involve counterfeiting. Ron Wyden gets it. Once that's legislated, there is no (repeat no) reason to go any further. Combine IP infringement with reasonable damages and you basically nip the whole "sue everyone and then sue the last guy standing again for good measure" approach currently wasting millions of taxpayer dollars.

Wow, comparing this interview to the one with Dan Castro that recently ran almost makes it seem like you're trolling the pro-COICA folks. There's just such a huge difference. Wyden actually shows an understanding of the internet and doesn't say anything blatantly stupid!

I'm rather interested, though. If this bill does actually get passed, what's the probability that it will 1) be vetoed, or 2) be struck down in the courts? Has Obama come out on one side or the other in this? I know he's been outspoken about support for net neutrality, but that certainly doesn't guarantee that he's above being swayed by big media.

If you were to enact a law that allows federal law enforcement to raid your property to search for firearms without probable cause, you would be doing exactly the same thing.

Again, this gets in to Constitutional protections. When you start to mess with Constitutional protections, people start to get very, very mad. Only the fact that this has been kept low-key to this point has prevented said backlash.

I just wanted to point out what's wrong with this argument...

kublakhanonomous wrote:

Actually, "The goal is to target foreign piracy and counterfeiting sites that can't be easily reached through US courts." But of course you immediately rant about TPB, which doesn't do at all what you say COICA is "primarily focused" on, and I don't think I've ever heard of any website that does.

Assuming kublakhanonomous is correct, then you're analogy has an issue.

The Constitution of the United States of America was written solely for American citizens and does not extend beyond the borders of the United States. Non-American citizens in other countries do not receive any benefits from our Constitution other than those that were specifically written to deal with them vis a vis treatise and/or organizations that the USA is party to, i.e., United Nations, NATO, etc.

People bandy about the US Constitution as if it was hard currency recognized around the world. It's not.